Frazier v. Piedmont & Northern Railway Co., 202 N.C. 11 (1931)

Dec. 23, 1931 · Supreme Court of North Carolina

202 N.C. 11

LORETTA FRAZIER, Administratrix, v. PIEDMONT AND NORTHERN RAILWAY COMPANY et al.

(Filed 23 December, 1931.)

1. Appeal and Error J d — The burden is on the appellant to show error.

On appeal from an order granting a motion for removal from the State to the Federal Court for diversity of citizenship and fraudulent joinder where the requisite jurisdictional amount is shown, the burden is on the appellant to overcome the presumption against error.

3. Appeal and Error E a — Appeal in this case is dismissed for insufficiency of record.

Where the record on appeal fails to set out the summons or to indicate that the resident defendant had been served, and fails to show organization of court and that the court was properly held at the place and time prescribed by law, the appeal will be dismissed.

Appeal by plaintiff from Cowper, Special Judge, at October Special Term, 1931, of MecicleNbueg (as shown on. face of judgment).

Civil action to recover damages for an alleged wrongful death, brought against Piedmont and Northern Eailway Company, a corporation chartered under the laws of the State of South Carolina, and F. E. Williams, citizen and resident of Mecklenburg County, N. 0.

Motion by nonresident, corporate defendant to remove cause to the District Court of the United States for the Western District of North Carolina for trial. Motion allowed, and plaintiff appeals.

6r. T. Carswell and Joe. W. Ervin for plaintiff.

W. S. O’B. Robinson, Jr., for defendant, Piedmont and Northern Railway Company.

Stacy, 0. J.

The petition for removal, besides showing the presence of the requisite jurisdictional amount, asserts a right of removal on the grounds of diverse citizenship, and alleges that the resident defendant has been fraudulently joined to prevent such removal.

The trial court held that the case was controlled by the line of decisions of which Cox v. Lamber Co., 193 N. C., 28, 136 S. E., 254, Johnson v. Lumber Co., 189 N. C., 81, 126 S. E., 165, and Rea v. Mirror Co., 158 N. C., 24, 73 S. E., 116, may be cited as fairly illustrative; while the appellant contends that the principles announced in Givens v. Mfg. Co., 196 N. C., 377, 145 S. E., 681, and Crisp v. Fibre Co., 193 N. C., 77, 136 S. E., 238, are more nearly applicable.

Without “threshing over old straw,” suffice it to say, appellant has not overcome the presumption against error. Bailey v. McKay, 198 N. C., 638, 152 S. E., 893. To prevail on appeal, be wbo alleges error must successfully bandle tbe laboring oar. Poindexter v. R. R., 201 N. C., 833, 160 S. E., 767; Jackson v. Bell, 201 N. C., 336, 159 S. E., 926.

But for another reason tbe appeal must be dismissed. There is no summons in tbe record or anything to indicate that tbe resident defendant has been served, and the transcript fails to show organization of court (S. v. May, 118 N. C., 1204, 24 S. E., 118), or that “court was held by a judge authorized to bold it, and at tbe place and time prescribed by law” (S. v. Butts, 91 N. C., 524). Pruitt v. Wood, 199 N. C., 788, 156 S. E., 126.

Appeal dismissed.